Matt Seligman: “How Panic on the Left Could Spark a Constitutional Crisis”

Matthew Seligman for Politico Mag:

A rising tide of unfounded fearmongering on the left has mounted over a pending election law case at the Supreme Court. And it could blow up in liberals’ faces in 2024.

Next month, the Supreme Court will consider a bold — many say radical — theory of the role of state legislatures in federal elections. If the court rules as many expect, it could have dire consequences for state courts’ ability to ensure that federal elections are free and fair.

But the baseless speculation that it would empower Trumpian state legislatures to execute a legal coup in 2024 by ignoring the results of the popular vote is worse than wrong. It’s dangerous. While sowing the seeds of panic about a conservative Supreme Court might make for good politics, it actually makes a constitutional crisis more likely in 2024….

The most terrifying concern making the rounds is that an endorsement of the independent state legislature theory would, in the words of the Center for American Progress, empower “a rogue state legislature … to refuse to certify the accurate results of a presidential election” and “disregard the will of the people and instead appoint its own slate of electors.” The New York Times reported that “many Democrats believe … state legislatures could have a pathway to overrule the popular vote in presidential elections by refusing to certify the results and instead sending their own slates of electors.” Hillary Clinton recently warned in a fundraising pitch that “the right-wing Supreme Court may be poised to rule on giving state legislatures … the power to overturn presidential elections.”

Similar claims made their way into the pages of the New Yorker. And Mother Jones. And the Guardian. And the New Republic. And MSNBC.

These claims are unequivocally false. Even if the Supreme Court adopts the most extreme version of the independent state legislature theory, it would absolutely and without question violate the Constitution and federal law for a state legislature to toss out the results of the election and appoint its own “alternative” electors after Election Day.

There is a simple reason that a state legislature doesn’t have that power, no matter what the Supreme Court decides in Moore. Article II of the Constitution gives states — or just state legislatures, according to the independent state legislature theory — the power to determine the “manner” of appointing electors. But Article II also gives Congress, not states, the power to determine the “time” when states must choose electors. That’s why Election Day is set by federal law….

The battle for the minds of Americans who don’t know the details of arcane constitutional doctrine will be much harder to win if those who attempt to overturn the 2024 election can point to their political opponents’ uninformed hyperventilating from just two years prior and say: See, you already said we have this power. Those who believe in the rule of law have a grave responsibility to know what the law actually says. They should start living up to that responsibility.

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